The European Court of Human Rights [sitting in Chamber] unanimously declared admissible the application lodged against Turkey by Cypriot national Ms. Myra Xenides-Arestis, who was displaced from her home and property during Turkey's military invasion of Cyprus in 1974.

The application was lodged with the European Court of Human Rights on 4 November 1998. The Government of the Republic of Cyprus as of right intervened in the proceedings. The Court held a public hearing on 2 September 2004 and published its decision on 6 April 2005.

The Applicant, Mrs Myra Xenides-Arestis, is a Greek Cypriot, owner of land in the locality of Ayios Memnon, in the Turkish occupied fenced-up area of Famagusta, in Cyprus, that she acquired as a gift from her mother. On this land there are

The Applicant maintains that in August 1974 she was forced by Turkey's military forces, during the invasion of Cyprus by Turkey, to leave Famagusta with her family and abandon their home, property and possessions. She states that since then she has been prevented from having access to, and from using and enjoying her home and property, which continue to be under occupation and controlled by the Turkish military forces. According to the Applicant, only Turkish military forces have access to the fenced-up area of Famagusta where her home and property are located.

The Court declared the application admissible, having rejected Turkey's objections (a) on jurisdiction, (b) as to the victim status of the applicant and (c) as to exhaustion of domestic remedies.

Accordingly, the Court considered, in the light of the parties' submissions, that the complaints of the applicant raise serious issues of fact and law under the European Convention on Human Rights, the determination of which require an examination of the merits of the case.

The Applicant complains of a continuing violation of her rights under Article 8 of the European Convention on Human Rights (right to respect for home) and Article 1 of Protocol No.1 to the Convention (protection of property) in that since August 1974, she has been deprived of her right to property and her home, by Turkey's military forces. Furthermore, the Applicant complains of an interference with her right to respect for the home in which she lived with her husband and children and of which she is the owner. She additionally maintains that Turkey prevents her from having access to and from using and enjoying her home and property because she is Greek Orthodox and of Greek Cypriot origin, in violation of Article 14 of the Convention (prohibition of discrimination) in conjunction with the other provisions of the Convention invoked in her application. 1. Jurisdiction by reason of time (ratione temporis) and by reason of place (ratione loci).

The respondent Government of Turkey argue that the facts of the present application predate the Turkish Government's recognition of the Court's compulsory jurisdiction. They contend that the process of the taking of Greek Cypriot property in northern Cyprus started in 1975 and ripened into an irreversible expropriation well before Turkey's acceptance of the Court's jurisdiction in January 1990. By reason, therefore, of time, the Court, according to Turkey, were not competent to examine the Applicant's complaints.

The Turkish Government dispute Turkey's responsibility under the Convention. They submit that the acts complained of were imputable exclusively to the "TRNC" administration - which Turkey alone considers an independent state established by the Turkish Cypriot community. Therefore, they maintain, as a result of the legislative, administrative and executive acts of the "TRNC", the Applicant's property has been expropriated. Turkey, they allege, can neither legislate in respect of matters of property in northern Cyprus, nor exercise control over such property situated outside its jurisdiction.

This, according to the Turkish Government, is evidenced by the very provisions of the Annan Plan for a Comprehensive Settlement of the Cyprus Problem, which, in Turkey's view, reflects an acknowledgement that Turkey does not have "jurisdiction" in northern Cyprus. Thus, the Turkish Government concluded, the cases pending before the Court cannot be regarded as falling within Article 1 of the Convention, i.e. the obligation of every High Contracting Party to secure to everyone within its jurisdiction respect of the human rights under the Convention.

The Applicant and the intervening Government of the Republic of Cyprus argue to the contrary based on the previous decisions of the ECHR both in the case of Loizidou v. Turkey as well as on the interstate Application by Cyprus v. Turkey (No. 25741/94).4 It is also argued the Annan Plan, once not approved and in accordance with its terms being null and void and of no effect whatsoever, could not have a bearing on the case at hand.

The Court recalls the conclusions in the case of Loizidou v. Turkey whereby it dismissed both the preliminary objections of Turkey by reason of time and by reason of place. In that judgment the Court recognised the continuing nature of the violations of Article 8 of the Convention and of Article 1 of Protocol No. 1 and also found that Turkey had indeed jurisdiction and responsibility for the acts in northern Cyprus in respect of which complaint was made. Specifically the Court stated:

"The Court recalls that in the case of Loizidou v. Turkey the Court dismissed the respondent Government's preliminary objections as to Turkey's alleged lack of jurisdiction and responsibility for the acts in respect of which complaint was made (Loizidou v. Turkey, merits, op. cit., §§ 39-47 and 49-57). In that same judgment the Court rejected the respondent Government's objection ratione temporis and recognised the continuing nature of the alleged violations of Articles 8 of the Convention and 1 of Protocol No.1 (op. cit., §§39-47). It further rejected their arguments regarding the effect which the Court's consideration of the applicant's claims could have on the inter-communal talks as well as on those concerning freedom of movement (op. cit., §§ 60-64). These findings were confirmed by the Court in its judgment of 10 May 2001 in the case of Cyprus v. Turkey (op. cit., §§ 75-8, 173-175 and 184-89, ECHR 2001-IV). The Court recalls that in its latter judgment it rejected the respondent Government's arguments according to which it had erred in its approach to the issues raised by the Loizidou case, especially on the matter of Turkey's liability for alleged violation of Convention rights, including allegations of continuing interferences with the right to respect for home and property rights under Articles 8 of the Convention and 1 of Protocol No.1 occurring within the "TRNC", as well as on the question of the relevance of the inter-communal talks to the Court\u2019s examination of such allegations (op. cit., §§ 75-81, 173-175 and 184-189; see also Demades v. Turkey, no. 16219/90, §§ 29-37 and 44-46, 31 July 2003; and Eugenia Michaelidou Developments Ltd and Michael Tymvios v. Turkey, no. 16163/90, §§ 28-31, 31 July 2003).

Concerning the latter, the Court notes that the Annan Plan would have been a significant development and break-through in inter-communal negotiations had it come into force. Consequently no change has occurred since the adoption of the above-mentioned judgments by the Court which would justify a departure from its conclusions as to Turkey's jurisdiction. In this connection, the Court points out, firstly, that the fact that the two communities were treated as having equal status in the negotiations leading up to the referendums, does not entail recognition of the "TRNC" or confer statehood thereupon. Secondly, the Court observes that the respondent Government continue to exercise overall military control over northern Cyprus and have not been able to show that there has been any change in this respect. Thirdly, the fact that the Greek-Cypriots rejected the Annan Plan does not have the legal consequence of bringing to an end the continuing violation of the displaced persons' rights for even the adoption of the plan would not have afforded immediate redress.

In the light of the above, the Court considers that the Government's pleas on inadmissibility on the grounds of lack of jurisdiction ratione temporis and ratione loci must be dismissed.

- Turkey's Government continues to exercise overall military control over the northern part Cyprus and have not been able to show that there has been any change in this respect and it is therefore responsible for violations of human rights occurring in that area.

- The fact that the two communities were treated as having equal status in the context of the negotiations leading up to the referendums on the Annan Plan, does not entail recognition of the "TRNC" or confer to it separate statehood.

- The fact that the Greek-Cypriots rejected the Annan Plan does not have the legal consequence of bringing to an end the continuing violations of the rights of persons displaced by Turkey's military invasion in 1974, because even the adoption of the plan would not have provided immediate redress to them.

The Government of Turkey point out that the property allegedly owned by the Applicant has been dedicated to the Turkish Moslem religious trust (Vakf) in perpetuity. Such property cannot be alienated, transferred or inherited. As a result, they contend, the transfer of this property to the applicant was unlawful and therefore, null and void. Hence the Applicant, they argue, is not a "victim" within the meaning of Article 34 of the Convention.

The Applicant and the intervening Government of Cyprus provided the Court with official certificates of ownership from the Department of Lands and Surveys of the Republic of Cyprus proving that the Applicant is indeed the owner of the relevant property. Consequently, they claim that the respondent Government of Turkey failed to substantiate their argument that the Applicant did not qualify as a "victim" under the Convention.

"The Court observes that, under its case-law, for the purposes of Article 34 of the Convention, the word "victim" means the person directly affected by the act or omission in issue (see Balmer-Schafroth and Others v. Switzerland, judgment of 26 August 1997, Reports 19970IV, § 26).

The Court notes that the applicant has provided the Court with official certificates of ownership from the Department of Lands and Surveys of the Republic of Cyprus proving that she is indeed the owner of the relevant property. It points out that the respondent Government have not substantiated their arguments disputing the applicant's victim status.

Therefore, the Court considers that the applicant can claim to be a "victim" within the meaning of Article 34 of the Convention and dismisses the respondent Government's objection of inadmissibility in this respect."

The third objection raised by the Government of Turkey related to the non-exhaustion of alleged domestic remedies by the Applicant prior to filing her recourse to the ECHR.

The respondent Government of Turkey maintain that in the light of a new "Law" enacted in June 2003 by the "TRNC" and the Compensation Commission established under its provisions, the Applicant and, for that matter, Greek Cypriots, like the Applicant in the present case, need to exhaust domestic remedies as required by Article 35 of the Convention before resorting to the European Court of Human Rights. The Applicant and the intervening Government of the Republic of Cyprus argue that no adequate or effective remedies existed in fact and that the so called "Compensation Commission "did not change the situation and that the law referred to by Turkey has no valid legal basis.

In reaching its conclusions on the objection of Turkey as to non-exhaustion of domestic remedies, the Court summarises at first the general principles that apply in this respect.

At the beginning the Court refers to the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention; i.e., that those who seek to bring their case against the state before an international judicial or arbitral organ must use first the remedies provided by the national legal system. The Court points out that no such obligation, however, exists, if the remedies are inadequate or ineffective or special circumstances arise which absolve the Applicant from exhausting available domestic remedies.

The Court then proceeds to point out that it is the Government of Turkey claiming non-exhaustion of domestic remedies who must indicate to the Court the remedies which the Applicant has not had recourse to, and satisfy the Court that those remedies were effective and available at the relevant time both in theory and in practice; in other words, that the remedies were accessible, were capable of providing redress in respect of the Applicant's complaints and offered reasonable prospects of success.

The Court, in applying Article 35 § 1 of the Convention and the principles emanating from it to the facts of the present case, reached the conclusion that the Law of June 2003 does not provide an adequate and effective remedy as required by the above Article of the Convention. In this connection the Court concluded that:

ii. Application of these principles in the present case As regards the application of Article 35 § 1 of the Convention to the facts of the present case, the Court notes at the outset that the compensation offered by Law no. 49/2003 in respect of the purported deprivation of the applicant's property is limited to damages concerning pecuniary loss for immovable property. No provision is made for movable property or non-pecuniary damages. Most importantly, however, the terms of compensation do not allow for the possibility or restitution of the property withheld. Thus, although compensation is foreseen, this cannot in the opinion of the Court be considered as a complete system of redress regulating the basic aspect of the interferences complained of (see, mutatis mutandis, Brumărescu v. Romania (just satisfaction) [GC], no.28342/95 §§ 19-22, ECHR 2001-I, and Papamichalopoulos and Others v. Greece (Article 50) judgment of 31 October 1995, Series A no. 330-B, pp. 58-60, §§ 34-38)\.In view of the above, the Court considers that the compensation-based remedy proposed by the respondent Government cannot fully redress the negation of the applicant's property rights. Accordingly, the Court concludes that the remedy proposed by the respondent Government in the present case does not satisfy the requirements under Article 35 § 1 of the Convention in that it cannot be regarded as an "effective" or "adequate" means for redressing the applicant's complaints. That being so it considers that the respondent Government's plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed."

The Court then examined the Applicant's complaint of interference by Turkey with her right to respect for the home in which she lived with her husband and children and of which she is the owner, as protected by Article 8 of the Convention.

The Government of Turkey, in its limited submissions on the merits of the case, disputed the additional Applicant's complaint under Article 8 of the Convention, on the basis that the notion of "home" in Article 8 cannot be interpreted to "cover an area of the State where one has grown up and where the family has its roots but where no longer lives". They also argue that the right to peaceful enjoyment of property and possessions does not include, as a corollary, the right to freedom of movement.

The Applicant and the intervening Cyprus Government argued to the contrary, since the Applicant in this case lived in her home property with her husband and children and that such property is located in the fenced up area of Famagusta which is under the occupation and overall control of the Turkish military.

"The Court considers, in the light of the parties' submissions, that the complaints raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

Declares the application admissible, without prejudging the merits of the case".

Decision of the Court

The European Court of Human Rights rejected the objections of the respondent Government of Turkey and unanimously declared the application lodged by Myra Xenides-Arestis against Turkey to be "admissible".